Citation Nr: 1707937
Decision Date: 03/16/17 Archive Date: 04/03/17
DOCKET NO. 11-22 756 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in Providence, Rhode Island
THE ISSUE
Entitlement to service connection for a right foot disability (claimed as residuals of a right foot injury).
REPRESENTATION
Appellant represented by: Disabled American Veterans
ATTORNEY FOR THE BOARD
A. Ali, Associate Counsel
INTRODUCTION
The appellant is a Veteran who served with the Rhode Island Army National Guard from April 1964 to April 1970 with a period of active duty for training (ACDUTRA) from February 1965 to July 1965. This matter is before the Board of Veterans' Appeals (Board) on appeal from a January 2010 rating decision of the Providence, Rhode Island Department of Veteran Affairs (VA) Regional Office (RO). The January 2010 rating decision, in pertinent part, denied the service connection for residuals of a claimed right foot injury.
The issue of entitlement for service connection for the right foot disability was remanded by the Board in July 2014 and July 2015 for additional development.
FINDING OF FACT
The preponderance of the evidence is against a finding that the Veteran has a current right foot disability that is causally related to, or may be presumed to be related to, or is aggravated by, an event, injury, or disease in service.
CONCLUSION OF LAW
The criteria for service connection for a right foot disability have not been met. 38 U.S.C.A. §§ 1110, 5107 (West 2014); 38 C.F.R. §§ 3.159, 3.303 (2016).
REASONS AND BASES FOR FINDING AND CONCLUSION
I. Veterans Claims Assistance Act of 2000 (VCAA)
The VCAA describes the VA's duties to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a). Proper VCAA notice must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. 38 C.F.R. § 3.159(b)(1). VCAA notice should be provided to a claimant before the initial unfavorable agency of original jurisdiction (AOJ) decision on a claim. Mayfield v. Nicholson, 444 F 3d. 1328 (Fed. Cir. 2006).
The Veteran was advised of VA's duties to notify and assist in a June 2009 letter which notified him of the information needed to substantiate and complete his claim, to include notice of the information that he was responsible for providing and of the evidence that VA would attempt to obtain, which included all of the Veteran's service records, records from the Social Security Administration (SSA) and private treatment records, if authorized. The Veteran was also provided notice as to how VA assigns disability ratings and effective dates. The Veteran has had ample opportunity to respond to or supplement the record. He has not alleged that notice was less than adequate. See Shinseki v. Sanders, 129 S. Ct. 1696 (2009) (discussing the rule of prejudicial error). The VA's duty to notify is satisfied.
The record contains the Veteran's service treatment records and pertinent postservice treatment records. In correspondence received in September 2015, the Veteran states that he had treatment for his right foot in the 1970s and 1980s. He also states that he does not have the records to indicate that there were earlier treatments. Thus, further efforts to develop the earlier records would be futile. An August 2016 response from the Veteran's representative stated all remaining information had been provided and that he had no other information or evidence to give to the VA to support the Veteran's claim. Therefore, the Board finds that all known and available records relevant to the issue on appeal have been obtained and associated with the appellant's claims file; and the appellant has not contended otherwise.
The 2014 Board Remand attempted to develop any additional available Social Security Administration (SSA) records; however, the only record provided by the SSA after multiple attempts is a Form SSA-3368 Disability Report. Thus, the Board concludes that all available SSA records have been obtained. The 2014 Board remand also requested that a VA examination of the right foot be developed and that an etiology opinion be obtained for any diagnosed right foot disability. The examination was performed in August 2014 and thereafter additional, pertinent private treatment records were submitted in September 2014.
In July 2015, the case was again remanded by the Board for a supplemental medical opinion to clarify the nature and likely etiology of the Veteran's right foot disability, taking into consideration the private records received in September 2014. The VA opinion provider was requested to consider diagnoses of tendonitis, neuritis neuropathy, bone spurs, and/or pes planus noted in the private treatment records (although it was unclear as to whether the various diagnoses corresponded to one or both feet).
In the opinion received in August 2015 (prepared by the 2014 examiner), the VA examiner provided an opinion which the Board finds to be adequate as it included consideration of the additional private medical records submitted in September 2014. Taken together, the 2014 examination and the 2015 medical opinion include a review of the Veteran's history, a physical examination, and medical opinions that included all necessary findings. The examination and medical opinion taken together, in the Board's judgment, show an adequate consideration of the disability on appeal and provides the necessary information to adjudicate the claim. See Barr v. Nicholson, 21 Vet. App. 303 (2007) (finding that VA must provide an examination that is adequate for rating purposes).
The Board finds that there has been substantial compliance with the Board's July 2014 and July 2015 remand instructions. The appellant has not identified any evidence that remains outstanding. Accordingly, the Board will address the merits of the claim.
II. Legal Criteria
Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303. Service connection means that the facts, shown by evidence, establish that a particular injury or disease resulting in disability was incurred coincident with service, or if preexisting such service, was aggravated by service. This may be accomplished by affirmatively showing inception or aggravation during service. 38 C.F.R. § 3.303 (a).
Service connection may be awarded on a presumptive basis for certain chronic diseases listed in 38 C.F.R. § 3.309(a) that manifest to a degree of 10 percent within 1 year of service separation or during service and then again at a later date. 38 C.F.R. § 3.303(b); see Walker v. Shinseki, 708 F.3d 1331, 1337 (Fed.Cir.2013). Arthritis is listed as a chronic disease. Evidence of continuity of symptomatology may be sufficient to invoke this presumption if a claimant demonstrates (1) that a condition was "noted" during service; (2) evidence of postservice continuity of the same symptomatology; and (3) medical or, in certain circumstances, lay evidence of a nexus between the present disability and the postservice symptomatology. Barr v. Nicholson, 21 Vet. App. 303, 307 (2007) (citing Savage v. Gober, 10 Vet.App. 488, 496-97(1997)); see 38 C.F.R. § 3.303(b).
Notwithstanding the lack of evidence of disease or injury during service, service connection may still be granted if all of the evidence, including that pertinent to service, establishes that the disability was incurred in service. See 38 U.S.C.A. § 1113 (b); 38 C.F.R. § 3.303 (d); Cosman v. Principi, 3 Vet. App. 503 (1992).
VA must give due consideration to all pertinent medical and lay evidence in a case where a veteran is seeking service connection. 38 U.S.C.A. § 1154 (a). Competency is a legal concept in determining whether medical or lay evidence may be considered, in other words, whether the evidence is admissible as distinguished from weight and credibility, a factual determination going to the probative value of the evidence, that is, does the evidence tend to prove a fact, once the evidence has been admitted. Rucker v. Brown, 10 Vet. App. 67, 74 (1997).
Competent lay evidence means any evidence not requiring that the proponent have specialized education, training, or experience. Lay evidence is competent if it is provided by a person who has knowledge of facts or circumstances and conveys matters that can be observed and described by a lay person. 38 C.F.R. § 3.159. Competent medical evidence means evidence provided by a person who is qualified through education, training, or experience to offer a medical diagnosis, statement, or opinion. 38 C.F.R. § 3.159.
Lay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a lay person is competent to identify the medical condition, (2) the lay person is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. See Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007).
The Board, as fact finder, must determine the probative value or weight of the admissible evidence. Washington v. Nicholson, 19 Vet. App. 362, 369 (2005) (citing Elkins v. Gober, 229 F.3d 1369, 1377 (Fed.Cir.2000) ("Fact-finding in veterans cases is to be done by the Board")). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the veteran. 38 U.S.C.A. § 5107 (b); 38 C.F.R. § 3.102.
III. Factual Background and Analysis
The Board notes that it has reviewed all of the evidence in the Veteran's record, with an emphasis on the evidence relevant to this appeal. Although the Board has an obligation to provide reasons and bases supporting its decision, there is no need to discuss, in detail, every piece of evidence. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (VA must review the entire record, but does not have to discuss each piece of evidence.). Hence, the Board will summarize the relevant evidence, as appropriate, and the Board's analysis will focus specifically on what the evidence shows, or does not show, as to the claim.
Service Connection for Right Foot
The Veteran claims that he has a right foot disability that was incurred in service. In a September 2015 statement, the Veteran asserted that "[m]y current right foot disability has been going on from the problem when I hurt it on active duty." In the Veteran's June 2009 statement, he refers to his period of active duty training in 1965 as his period of active duty and claims that, "[p]art of my training was to drive and operate the recovery tank...[w]hile exiting the tank, I had landed on my right foot and hurt my foot that caused some great difficulty in standing or walking." The Veteran also states that the officer in charge kept him on light duty for some time, and that from time to time, he had experienced difficulty with his foot. He states that he has been treated by doctors for his foot to this date.
The Veteran's available service treatment records (STRs) show no right foot injury. These records include a service examination in June 1968 where his feet and lower extremities are marked as normal on clinical evaluation. The Veteran's SSA record was his disability report and covered his medical and work history from 1982 to 2003. The Veteran indicated his heart and/or left (not right) foot pain first began to bother him in 1982 and that he was involved in an automobile accident in October 1982. He suffered from skull, rib and elbow fractures and knee injuries and reported he was out of work for eight years to recover from all his injuries. He stated he returned to work in late 1990 and then in April 2003, he had a broken left foot and was inpatient for three days. He left work due to breaking his left foot and was out until September 2003. When he returned to work, he reported he worked steadily and full time until he was let go in November 2003 due to problems with the employer and his inability to be on his feet all day as required. He stated he had not able to work since then. The SSA report made no mention of a right foot injury.
The Veteran was examined in conjunction with his right foot disability claim in August 2014. At the time, the VA examiner found the Veteran did not have a current diagnosis for the condition he was claim and noted that X-rays showed degenerative joint disease of the first (great) toe. The examiner noted that this is not the location of the Veteran's reported pain which is on the center portion of the foot. She stated that a right foot condition was less likely than not incurred in or caused by the claimed in-service injury. She stated specifically, however, that there was not enough medical documentation regarding the Veteran's right foot. She also stated there was no documentation of treatment by Dr. Thornton for 20-25 years as reported by the Veteran.
In September 2014, VA received Dr. Thornton's records covering a treatment period from December 2010 to December 2013, which showed that the Veteran received treatment for both his left and right feet. The December 2010 treatment notes pain in both feet. In October 2011, the Veteran was then treated for a right foot condition with an injection - single tendon origin and ultrasound. In November 2011, the Veteran had treatment for both feet and requested injections for each foot. The Veteran had treatment again for both feet in November 2012, an injection of the left foot in May 2013, and an injection of the right foot in June 2013. The Veteran had treatment in November 2013 for the right foot, and requested an injection. The record notes a spring surgery for the left foot for bone spurs and pes planus. His final appointment in December 2013 noted that the Veteran's state was a lot better, and the feet were much improved bilaterally.
The Board's July 2015 remand instructions were forwarded with the claims file to an appropriate examiner to provide a supplemental medical opinion regarding the Veteran's right foot disability with consideration of Dr. Thornton's records recently added to the record. The subsequent August 2015 supplemental medical opinion was conducted by the same VA examiner who did the Veteran's in person examination and provided the August 2014 opinion.
The VA examiner opined in 2015 that the condition claimed was less likely than not (less than 50 percent probability) incurred in or caused by the claimed in-service injury, event or illness. The VA examiner's rationale was that there was still no medical evidence in the Veteran's STRs regarding a foot injury. The 2015 medical opinion specifically noted that the outside records reviewed were from 2010 to 2014. The examiner concluded that "[t]here is not enough medical evidence that these diagnoses are related to an injury that occurred from 1960's." The opinion also noted that STRs from April 1964 documented "no 'foot trouble.'"
It is not in dispute that the Veteran has a current right foot disability. Degenerative joint disease of the first (great) toe was noted by the 2014 VA examiner. In addition, private treatment records reflect assessments of tendonitis, neuritis neuropathy, bone spurs and pes planus, although it is unclear as to which foot is involved. What must be resolved is whether a current disability is etiologically related to the foot injury the Veteran reported in service. The Board finds that the preponderance of the evidence of record is against the Veteran's claim.
As to the Veteran's own lay statements, the Board acknowledges the Veteran's statements of how his injury occurred, that he had great difficulty standing and walking on it at the time, and continues to have treatment for his foot to this day. The Veteran is competent to give evidence about observable symptoms such as difficulty standing and walking. See Layno v. Brown, 6 Vet. App. at 465. Lay evidence concerning observable symptoms after service, if credible, is ultimately competent, regardless of the lack of contemporaneous medical evidence. The Board cannot determine that lay evidence lacks credibility solely because it is unaccompanied by contemporaneous medical evidence. See Buchanan v. Nicholson, 451 F.3d 1331, 1336-37 (Fed. Cir. 2006). However, the Board may consider a lack of contemporaneous medical evidence as one factor, among others, in determining the credibility of lay evidence. See Buchanan, 451 F.3d at 1337. In this instance, however, there is a contemporaneous record - the Veteran's service examination report from 1968 - that contradicts the Veteran's contention, years later, that he has experienced symptoms since service. See Struck v. Brown, 9 Vet. App. 145 (1996) (discussing how contemporaneous medical findings may be given more probative weight than contrary evidence offered years later, long after the fact).
The Veteran initially filed a right foot disability claim with the VA in June 2009, nearly 39 years after service, for compensation in relation to a right foot disability. The Veteran ended his period of ACDUTRA in July 1965, and separated from the Rhode Island Army National Guard in April 1970. Significantly, the right foot was clinically normal on service examination conducted in June 1968. Medical records in the file show that the initial documentation of a right foot disability was during private treatment in December 2010.
The absence of medical evidence of continuity of symptomatology combined with the objective finding on the 1968 service examination of no right foot injury or treatment outweigh any of his current statements that may imply a continuity. This is so because the current statements lack credibility in light of the contemporaneous record after service. Stated another way, any assertions of a right foot disability existing from the time of service, while competent, lack credibility both because they are self-serving and because they are inconsistent, including with other evidence of record. See Pond v. West, 12 Vet. App. 24, 25 (1991). For example, the Veteran reported his right foot disability began in 1965; however, his right foot was normal at the service separation report in 1968. As continuity of symptomatology has not been established, the preponderance of the evidence is against the claim of service connection for a right foot based on continuity of symptomatology under 38 C.F.R. § 3.303(b).
The VA examiner reviewed all the available records in 2014 and 2015 and was unable to find a nexus to the right foot injury the Veteran asserts occurred in service. There is no competent medical opinion regarding the nexus to the contrary. The VA examiner's opinion is competent and probative evidence weighing against the Veteran's claim. Therefore, service connection for the right foot disability is not warranted.
In reaching this decision regarding the service connection, the Board considered the applicability of the benefit of the doubt doctrine. However, the preponderance of the evidence is against the Veteran's claim of entitlement to service connection for a right foot disability. That doctrine is not applicable in the instant appeal. 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102. The Board is grateful to the Veteran for his honorable service, and regrets that a more favorable outcome could not be reached.
ORDER
Service connection for a right foot disability (claimed as residuals of a right foot injury) is denied.
____________________________________________
M.C. Graham
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs